[Federal Register Volume 76, Number 117 (Friday, June 17, 2011)]
[Rules and Regulations]
[Pages 35349-35350]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-15111]



Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2011-0035; 92220-1113-0000; ABC Code: C6]
RIN 1018-AX80

Endangered and Threatened Wildlife and Plants; Reinstatement of 
Listing Protections for the Virginia Northern Flying Squirrel in 
Compliance With a Court Order

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are issuing 
this final rule to comply with a court order that has the effect of 
reinstating the regulatory protections under the Endangered Species Act 
of 1973 (ESA), as amended, for the Virginia northern flying squirrel 
(Glaucomys sabrinus fuscus). Pursuant to the District of Columbia 
District Court order dated March 25, 2011, this rule reinstates the 
Virginia northern flying squirrel listing as endangered.

DATES: This action is effective June 17, 2011. However, the court order 
had legal effect immediately upon its filing on March 25, 2011.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov. It will also be available for inspection, by 
appointment, during normal business hours at U.S. Fish and Wildlife 
Service, West Virginia Field Office, 694 Beverly Pike, Elkins, West 
Virginia 26241. Call (304) 636-6586 to make arrangements.

[[Page 35350]]

FOR FURTHER INFORMATION CONTACT: For information contact Deborah 
Carter, Project Leader, at our West Virginia field office (see 
ADDRESSES) or telephone (304) 636-6586, extension 12. Individuals who 
are hearing impaired or speech impaired may call the Federal Relay 
Service at 1-800-877-8337 for TTY assistance.



    On August 26, 2008, we published a final rule to remove ESA 
protections for the Virginia northern flying squirrel, more commonly 
known as the West Virginia northern flying squirrel (WVNFS) (73 FR 
50226). Additional background information on the WVNFS, including 
previous Federal actions, can be found in our August 26, 2008, final 
rule, http://www.regulations.gov, or at http://ecos.fws.gov/speciesProfile/profile/speciesProfile.action?spcode=A09R.
    A lawsuit challenging our final rule was filed in U.S. District 
Court for the District of Columbia. On March 25, 2011, the U.S. 
District Court for the District of Columbia vacated and set aside our 
2008 delisting rule (Friends of Blackwater et al. v. Salazar et al., 
    The decision reinstates Federal protections that were in place 
prior to our 2008 delisting. Accordingly, WVNFS is listed as endangered 
throughout its range (50 FR 26999 27002, July 1, 1985; 50 CFR 
17.11(h)). Therefore, take of WVNFS may be authorized only by a permit 
obtained under section 10 of the ESA, or if exempted by an incidental 
take statement within a biological opinion issued by the Service 
pursuant to section 7 of the ESA. We notified all State and Federal 
partners of the decision and its impact shortly after the order was 
released. There are no federally recognized Tribes to notify in 
Virginia or West Virginia. We also took steps to ensure the public was 
aware of the decision.
    This action is independent of any decision by the United States or 
any interveners in the case to appeal the March 25, 2011, District of 
Columbia District Court ruling.

Administrative Procedure

    This rulemaking is necessary to comply with the March 25, 2011, 
court order. Therefore, under these circumstances, the Director has 
determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and 
opportunity for public comment are impractical and unnecessary. The 
Director has further determined, pursuant to 5 U.S.C. 553(d)(3), that 
the agency has good cause to make this rule effective upon publication.

Effects of the Rule

    As of the filing of the court order, delisted WVNFS were again 
listed as endangered (50 CFR 17.11(h)).
    This rule will not affect the status of WVNFS under State laws or 
suspend any other legal protections provided by State law.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    In order to comply with the court order discussed above, we amend 
part 17, subchapter B of chapter I, title 50 of the CFR, as set forth 


1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec.  17.11 by adding an entry in the table at paragraph (h) 
for ``Squirrel, Virginia northern flying'' under ``MAMMALS'' as 

Sec.  17.11  [Amended]

* * * * *
    (h) * * *

                         Species                                                     Vertebrate
---------------------------------------------------------                         population where                                Critical     Special
                                                             Historic range         endangered or        Status    When listed    habitat       rules
            Common name                Scientific name                               threatened
                                                                      * * * * * * *
Squirrel, Virginia northern flying  Glaucomys sabrinus    U.S.A. (VA, WV).....  Entire..............            E          189          N/A          N/A
                                                                      * * * * * * *

* * * * *

    Dated: May 27, 2011.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-15111 Filed 6-16-11; 8:45 am]